2010 SWIFT General Terms and Conditions

SWIFT
General Terms and Conditions
The SWIFT General Terms and Conditions constitute the main set of SWIFT standard terms and conditions for the
provision and the use of SWIFT services and products. They apply each time the electronic form or contract
executed by the customer refers to the SWIFT General Terms and Conditions. This document is for customers that
need information about the contractual framework for the provision and the use of SWIFT services and products.

1 January 2010
SWIFT
2 General Terms and Conditions
Table of Contents
Preface……………………………………………………………………………………………………………………………….3
About SWIFT and SWIFT Contractual Documentation …………………………………………………………5
General Terms and Conditions……………………………………………………………………………………………7
1 Interpretation……………………………………………………………………………………………………………..7
2 SWIFT Contractual Documentation…………………………………………………………………………….7
3 Conditions of Use for SWIFT Services and Products ………………………………………………….8
4 SWIFT Role and Responsibilities ……………………………………………………………………………….8
5 Customer Role and Responsibilities…………………………………………………………………………..9
6 SWIFT Software Licence…………………………………………………………………………………………..10
7 Intellectual Property Rights Indemnification……………………………………………………………..11
8 Charges and Fees…………………………………………………………………………………………………….12
9 Liability ……………………………………………………………………………………………………………………12
10 Duration and Termination…………………………………………………………………………………………14
11 Personal Data Protection………………………………………………………………………………………….15
12 Confidentiality………………………………………………………………………………………………………….15
13 Notices…………………………………………………………………………………………………………………….16
14 Miscellaneous ………………………………………………………………………………………………………….17
15 Dispute Resolution…………………………………………………………………………………………………..18
16 Applicable Law…………………………………………………………………………………………………………19Preface
1 January 2010 3
Preface
Purpose of this document
The SWIFT General Terms and Conditions constitute the main set of SWIFT standard terms and
conditions for the provision and the use of SWIFT services and products. They apply each time the
electronic form or contract executed by the customer refers to the SWIFT General Terms and
Conditions.
In particular, the SWIFT General Terms and Conditions provide information about the conditions of
use of the SWIFT services and products, the rights and obligations of the parties, including the
duration and the conditions to terminate, their liability, the claim process, and applicable law and
jurisdiction.
Intended audience
This document is for the following audience:
• customers that need information about the contractual framework for the provision and the
use of SWIFT services and products
Related documentation
• BIC Policy
• Pricing and Invoicing – Price List
• Pricing and Invoicing – Ordering, Invoicing, and Payment
• Shared Infrastructure Policy
• Shared Infrastructure Programme Terms and Conditions
• SWIFT By-laws
• SWIFT Corporate Rules
• SWIFT Data Retrieval Policy
• SWIFT Glossary
• SWIFT Partner Programme Terms and Conditions
• SWIFT Personal Data Protection Policy
• SWIFTNet and Alliance Release Policy
• SWIFTNet Interfaces Qualification Programme Guide
• SWIFT service descriptions
Significant changes
This new edition of the General Terms and Conditions addresses comments that SWIFT has
received from customers. It also reflects the latest developments of SWIFT’s offering.
What’s new?
• The wording and the structure of the General Terms and Conditions have been extensively
reviewed with the purpose to clarify and simplify the whole document.
• The General Terms and Conditions are more customer-centric.
Changes fall into two broad categories:
1. A new introduction on SWIFT governance
A brand new introduction has been included to present the General Terms and
Conditions in the broader context of SWIFT’s specific co-operative governance.
This includes a discussion of SWIFT’s approach, as a co-operative, to requests for
changes. Rather than executing ad hoc amendments with individual customers, SWIFTSWIFT
4 General Terms and Conditions
prefers to include acceptable changes in the next version of its standard terms and
conditions for all customers.
2. More balanced terms and conditions
• The scope of the indemnity in clause 9.2 has been reduced to third-party claims
resulting from the customer’s possession or use of the SWIFT services and
products.
The new General Terms and Conditions also reflect SWIFT’s continued effort to have
reasonable terms and conditions, in line with industry standards. For example:
• Certain unilateral provisions for the benefit of SWIFT are now reciprocal. These
include the general liability principles in clause 9.3, or the right for the customer to
share confidential information within its group in clause 12.1.
• Other unilateral provisions for the benefit of SWIFT have been deleted, such as the
unconditional right for SWIFT to make public announcements regarding customers.
• New rights for the customer are confirmed (in particular, the right to outsource
operations to third parties in clause 14.1.1).
• Some obligations of the customer have been materially reduced to limit any
unnecessary burden, including the audit obligations in clause 14.2.3.
For more information about changes made in the new General Terms and Conditions, see the
Changes Table.
SWIFT-defined terms
In the context of SWIFT documentation, certain terms have a specific meaning. These terms are
called SWIFT-defined terms (for example, customer or user). The definitions of SWIFT-defined
terms appear in the SWIFT Glossary.About SWIFT and SWIFT Contractual Documentation
1 January 2010 5
About SWIFT and SWIFT Contractual
Documentation
SWIFT community and governance
SWIFT is a member-owned co-operative.
More than 2,000 banks and other financial institutions worldwide are SWIFT shareholders. Over
8,300 banking organisations, securities institutions, and corporate customers in more than 200
countries communicate through SWIFT.
SWIFT‘s governance ensures a continued dialogue with all SWIFT users.
SWIFT users are organized in national member and user groups.
As part of the SWIFT decision making process, SWIFT regularly consults SWIFT users through
national groups or other channels such as ad hoc working groups (typically, on membership or
operational matters, or for the development of standards). SWIFT users provide feedback to
SWIFT directly, or through their national groups or SWIFT Board members.
SWIFT encourages such dialogue with all SWIFT users. Considering the scope of SWIFT
business, SWIFT also relies on SWIFT users to inform SWIFT if they become aware of local laws,
regulations, or decisions that may have a potential impact on SWIFT.
For more information about the SWIFT community and governance, see the Corporate Rules.
Contractual documentation to join SWIFT
SWIFT provides services and products only to registered SWIFT users, SWIFT partners or service
bureaux (collectively, customers).
To join SWIFT, SWIFT users execute a SWIFT Undertaking. The SWIFT By-laws and the
Corporate Rules govern SWIFT membership and, as applicable, SWIFT shareholding.
Service bureaux register with SWIFT under the Shared Infrastructure Programme Terms and
Conditions, and SWIFT partners under the SWIFT Partner Programme Terms and Conditions.
Contractual documentation to subscribe to SWIFT services and
products
SWIFT offers its services and products to all customers on a common contractual basis.
This is a key element of SWIFT’s co-operative nature. It ensures, for example, that the sender and
receiver of a SWIFT message are treated equally in all material respects.
SWIFT reviews customer requests to change SWIFT terms and conditions in keeping with
SWIFT’s co-operative nature.
Rather than executing ad hoc amendments with individual customers, SWIFT prefers to include
acceptable changes in the next version of its standard terms and conditions for all customers.
SWIFT General Terms and Conditions
The SWIFT General Terms and Conditions constitute the main set of SWIFT standard terms and
conditions for the provision and the use of SWIFT services and products. They apply each time the
electronic form or contract executed by the customer refers to the SWIFT General Terms and
Conditions.
The SWIFT General Terms and Conditions apply to most SWIFT services and products, including:
• messaging (for example, FIN, InterAct, FileAct, or Browse) SWIFT
6 General Terms and Conditions
• Solutions (for example, Cash Reporting, Bulk Payments or SCORE)
• applications (for example, Accord or Trade Services Utility)
• public key infrastructure (PKI)
• access to the secure IP network (for example, the Alliance Connect products)
• software (for example, SWIFTNet Link or the Alliance portfolio)
• Watch products
• Support services
The SWIFT General Terms and Conditions include by reference:
• SWIFT policies, such as the SWIFT Personal Data Protection Policy, the SWIFT Data
Retrieval Policy, the Shared Infrastructure Policy, and the BIC Policy
• SWIFT service descriptions
• SWIFT pricing and invoicing documentation (for example, the Price List)
Other SWIFT standard terms and conditions
A few SWIFT services and products (for example, third-party security equipment or directories) fall
outside the scope of the SWIFT General Terms and Conditions, and have their own terms and
conditions.
Where to find SWIFT contractual documentation
Customers can find the latest version of the SWIFT General Terms and Conditions and other
SWIFT standard terms and conditions, SWIFT policies, and SWIFT pricing and invoicing
documentation at www.swift.com > About SWIFT > Legal > SWIFT Contracts. SWIFT service
descriptions are available at www.swift.com > Support > Documentation.General Terms and Conditions
1 January 2010 7
General Terms and Conditions
1 Interpretation
1.1 Unless inconsistent with the context, the following reading conventions apply in these General
Terms and Conditions:
a) Terms that are highlighted in grey in the text have the specific meaning set out in the
SWIFT Glossary.
b) A reference to a document or form refers to the latest version in force.
c) A reference to a person includes any other person for which he is responsible, including his
employees, directors, agents, and subcontractors.
1.2 General principles or words are not given any restrictive meaning when they are illustrated with
examples.
1.3 The following order of precedence applies within the SWIFT contractual documentation:
1) the electronic form or contract executed by the customer to subscribe to SWIFT services
and products
2) the SWIFT standard terms and conditions (such as these General Terms and Conditions)
3) the SWIFT policies
4) the service descriptions
5) any other service documentation
If any document expressly provides that another document amends or supplements it, that other
document prevails.
1.4 These General Terms and Conditions constitute a legal agreement between SWIFT and its
customers. However, they do not govern any contractual arrangements directly between
customers, including those set out in the SWIFT contractual documentation (for example, the
binding provisions of the rulebook of a Solution).
2 SWIFT Contractual Documentation
2.1 Each party accepts the validity of an electronic signature or electronic data, and confirms that it
has the same force and legal effect as if in writing or paper based.
2.2 The customer acknowledges and agrees that SWIFT may amend or supplement the SWIFT
contractual documentation at any time upon notice to the customer (typically, by updating the
relevant document(s) in the SWIFT User Handbook Online available on www.swift.com).
The customer must ensure that it always refers to the latest SWIFT contractual documentation
and other service documentation in effect, and that it is aware of the latest available information
relating to SWIFT services and products. In particular, customers must regularly consult the
following:
• the SWIFT contracts section (www.swift.com > About SWIFT > Legal > SWIFT contracts)
• the SWIFT User Handbook Online (www.swift.com > Support > Documentation)
• the Support section (www.swift.com > Support)
To assist customers, SWIFT publishes various newsletters. These typically inform customers by
e-mail about the latest news, changes, known problems and solutions, and frequently asked
questions. SWIFT notifies changes to these General Terms and Conditions through the SWIFT SWIFT
8 General Terms and Conditions
User Handbook newsletter. SWIFT encourages customers to subscribe to all relevant
newsletters (that are available at www.swift.com > Support > Support newsletters).
2.3 Only the English version of the SWIFT contractual documentation as published by SWIFT
(typically, in the SWIFT User Handbook) is valid.
3 Conditions of Use for SWIFT Services and Products
3.1 The customer must be a registered SWIFT user, SWIFT partner, or service bureau in order to
subscribe to and use SWIFT services and products. No subscription to SWIFT services and
products will be effective until they are accepted by SWIFT.
3.2 SWIFT may set out additional conditions of use for SWIFT services and products in the SWIFT
contractual documentation.
For example, SWIFT partners and service bureaux may access messaging services, Solutions,
and applications for testing or demo purposes only.
The customer must refer to the SWIFT contractual documentation to check which services and
products are available to it, and in which environment.
4 SWIFT Role and Responsibilities
4.1
4.1.1 SWIFT provides its services and products and complies with any applicable service levels in all
material respects as set out in the relevant service description.
Provide SWIFT Services and Products
4.1.2 When SWIFT is responsible for the shipment, SWIFT accepts responsibility for loss or damage
until delivery.
4.1.3 When the customer is responsible for downloading SWIFT services, products, or
documentation, SWIFT’s obligation to make these available to the customer is fulfilled by
making them available on the relevant site in a downloadable format.
4.1.4 When SWIFT is responsible for the implementation or activation, SWIFT will use all
commercially reasonable efforts to complete such implementation or activation by the date
confirmed to the customer, or any other date agreed with the customer.
4.2
4.2.1 The customer acknowledges and agrees that SWIFT may suspend or change its services and
products, in whole or in part, at any time, giving as much advance notice as practicable
(typically, as per the SWIFTNet and Alliance Release Policy and during announced downtime
windows), in any of the following events:
Suspension and Change
a) to perform or allow maintenance, or to upgrade or otherwise change the services and
products
b) to prevent or mitigate any adverse effect on the security, reliability, or resilience of SWIFT
services or products or, more generally, SWIFT’s reputation, brand, or goodwill (typically, if
the customer is subject to sanctions such as EU sanctions)
c) to comply with an order or request from a regulatory or governmental authority, body, or
agency
d) if the customer (or the service administrator of a Closed User Group in which the customer
participates) has committed a material defaultGeneral Terms and Conditions
1 January 2010 9
e) SWIFT informs the customer about changes of SWIFT services and products (typically, in
the SWIFT Release Timeline, a release or patch letter, or an update of the SWIFT
contractual documentation)
4.2.2 SWIFT limits any suspension of, or changes to, its services and products pursuant to clause
4.2.1 as reasonably practicable in the circumstances. SWIFT typically schedules maintenance,
upgrade, and change activities during allowable downtime windows (ADW) as published at
www.swift.com > Support > Operational status > ADW schedule.
4.3
4.3.1 SWIFT provides its services and products using care and skill consistent with good industry
practice.
SWIFT Responsibilities
4.3.2 SWIFT provides its services and products using competent personnel with appropriate
experience.
4.3.3 Unless SWIFT notifies the customer otherwise, SWIFT warrants that it is not aware of any bona
fide claim that the possession or use of the SWIFT services or products by the customer, as
permitted under the SWIFT contractual documentation, infringes the intellectual property rights
of any third party.
5 Customer Role and Responsibilities
5.1
5.1.1 The customer must comply with all obligations and other mandatory instructions applicable to it
in connection with its use of SWIFT services and products, as set out in the SWIFT contractual
documentation or otherwise notified by SWIFT to the customer.
General Obligations
5.1.2 The customer is responsible for complying with all operating requirements for its use of SWIFT
services and products. As applicable, the customer must use a qualified interface. More
information about qualified interfaces is available in the SWIFTNet Interfaces Qualification
Programme Guide, at www.swift.com > Solutions > Partner programme > Qualified interfaces.
5.1.3 The customer must use only the releases or patches of SWIFT services and products that
SWIFT currently supports, as specified in the SWIFT Release Timeline or as otherwise notified
by SWIFT (for example, in a release or patch letter).
Consequently, the customer must subscribe to applicable support and maintenance services
and, when using SWIFT software, install all new releases or patches and remove preceding
releases or patches, in due time.
5.2
The customer is responsible at all times for maintaining the confidentiality, integrity, and
availability of traffic, message, and configuration data on its SWIFT systems, and on that
segment of its connectivity for which the customer is responsible under the SWIFT contractual
documentation.
Data Security
In particular, the customer must ensure the following:
a) Only authorised personnel have physical and logical access to its SWIFT systems and
connectivity.
b) It installs state-of-the-art virus scanning software.
c) It operates backup procedures and handles backup media according to security practices
no less secure than those applied to its production systems and connectivity.
The customer must also ensure that its operational environment has been configured for
increased resilience in order to minimise any downtime in the event of a failure of its primary SWIFT
10 General Terms and Conditions
systems or connection. The customer will, in particular, comply with all recommendations for
increased resilience issued by SWIFT.
5.3
The customer is responsible for its use of SWIFT services and products, including any data
transmitted through SWIFT.
Industry Practice, Applicable Laws, and Regulations
In using SWIFT services and products and conducting its business, the customer must always
exercise due diligence and reasonable judgment, and must comply with good industry practice
and all relevant laws, regulations, or third-party rights.
In particular, the customer must seek all necessary or advisable consents and authorisations in
order to ensure that no laws, regulations, or third-party rights are violated (including laws and
regulations regarding banking, money laundering, terrorist financing, economic sanctions,
competition, and data transmission).
The customer must also comply with all relevant laws and regulations regarding the export,
import, and use of any products, software, technology, or materials (including cryptographic
technology and materials) comprised in or relating to the provision and the use of SWIFT
services and products.
6 SWIFT Software Licence
6.1 When the SWIFT services and products are or include software, SWIFT grants to the customer
a non-exclusive and non-transferable right to use the software for the purposes set out in the
relevant service description and in accordance with the applicable licence terms set out in this
clause 6 or elsewhere in the SWIFT contractual documentation.
6.2 Except to the extent expressly permitted under SWIFT contractual documentation, the customer
must not, nor authorise others to:
a) modify, enhance, or otherwise change the software, or prepare derivative works based upon
the software
b) translate, decompile, disassemble, reverse-engineer, or otherwise re-create the software or
determine its source code (except to the extent expressly permitted by applicable law)
c) rent, lease, sell, sub-license, distribute to, or allow access to, or otherwise provide or transfer
the software to third parties (except to the extent expressly permitted in clause 14.1.1)
d) merge all or any part of the software with another program
e) reproduce the software (except to the extent necessary for back-up or disaster recovery
purposes)
f) remove, alter, or cancel from view any copyright or other notices of proprietary rights, marks,
or legends appearing on the physical medium or contained in the software. The customer will
reproduce and include the same on any permitted copy.
6.3 Acceptance of SWIFT software takes place ninety (90) days after delivery.
If the software does not perform within that period of time in all material respects in accordance
with the relevant service description, SWIFT will use all commercially reasonable efforts to
implement a satisfactory remedy within a reasonable time period.
If SWIFT is unable to remedy the problem, SWIFT will refund all charges and fees paid in
respect of the software, and the contractual arrangements for the software will automatically
terminate.
This clause 6.3 states the sole and exclusive rights and remedies of the customer, if the
customer reports a problem with SWIFT software within ninety (90) days after delivery.General Terms and Conditions
1 January 2010 11
6.4 Unless otherwise contracted with SWIFT, the installation of SWIFT software is the sole
responsibility of the customer. The customer must only install SWIFT software at the site(s)
notified to, and agreed with, SWIFT.
6.5 The customer acknowledges that SWIFT software may include third-party software, as
documented in the relevant service description.
Installation and use of such embedded third-party software may be subject to the customer
agreeing to additional licence terms imposed by the third-party licensor, as notified by SWIFT to
the customer (for example, through “on-screen”, “click wrap” or “installation notices” terms and
conditions).
If the customer objects to such third-party licence terms, it may, as its sole and exclusive right
and remedy, terminate (without any liability or charge) its contractual arrangements with SWIFT
for the affected SWIFT software in accordance with clause 10.5.
6.6 Without prejudice to clause 5.1.2, SWIFT may supply accompanying third-party software for use
in conjunction with SWIFT services and products, as documented in the relevant service
description. Unlike embedded third-party software, such accompanying software is not part of
SWIFT services and products. SWIFT disclaims any responsibility for the installation or use of
such accompanying software. The customer may install and use such accompanying software,
in its discretion and at its own risk, only upon condition that it has obtained and accepted all
applicable licences.
7 Intellectual Property Rights Indemnification
7.1 Any and all rights (including title, ownership rights, database rights, and any other intellectual
property rights) in SWIFT services and products, and documentation or other materials
developed or supplied in connection with them, including any associated processes or any
derivative works, are and will remain the sole and exclusive property of SWIFT or its licensors.
No rights are granted by SWIFT in respect of SWIFT services and products other than those
expressly granted under the SWIFT contractual documentation.
7.2 If a third party makes a bona fide claim that the possession or use of any SWIFT services or
products by the customer as permitted under the SWIFT contractual documentation infringes its
intellectual property rights, SWIFT will indemnify the customer against that claim by paying:
a) any reasonable legal fees incurred by the customer until control over the defence and
settlement of any such claim has been handed over to SWIFT
b) any damages that a court awards against the customer if any such claim is upheld
provided that the customer :
a) notifies SWIFT promptly in writing of any such claim
b) does nothing to jeopardise or prejudice SWIFT’s defence and settlement of any such claim
c) promptly hands over to SWIFT control over the defence and settlement of any such claim.
7.3 If any of the SWIFT services or products, in whole or in part, is held to constitute an infringement
of intellectual property rights of third parties, or their provision or use is enjoined or prevented, in
whole or in part, by a court order, SWIFT will, in its discretion and at its expense, use all
commercially reasonable efforts to achieve one of the following alternatives:
a) procure for the customer the right to continue using the affected SWIFT services or
productsSWIFT
12 General Terms and Conditions
b) modify, replace, or amend the affected SWIFT services or products so that they no longer
constitute an infringement. In this case, the customer will substitute such version of the
SWIFT services and products at the earliest opportunity after it has been made available.
If SWIFT is unable to secure either option, then SWIFT will refund any one-time charge(s) paid
for the affected SWIFT services or products, and the contractual arrangements for the affected
SWIFT services and products will automatically terminate.
7.4 This clause 7 states the sole and exclusive rights and remedies of the customer concerning the
infringement of rights of third parties, allegations of infringement, or breach of clause 4.3.3. Any
right or remedy of the customer under this clause 7 is subject to clause 9.
8 Charges and Fees
The customer must pay to SWIFT all charges and fees applicable to it for the provision or use of
SWIFT services and products.
These charges and fees, and related invoicing and payment terms and conditions, are as
notified by SWIFT to the customer through SWIFT standard pricing documentation (typically,
SWIFT Price Lists) or otherwise (for example, a specific quotation for the customer).
9 Liability
9.1
9.1.1 Subject to the other provisions of this clause 9, SWIFT accepts liability to the customer (whether
in contract, tort, or otherwise), only for negligence, wilful default, or fraud, or under the indemnity
in clause 7.2.
SWIFT Liability
9.1.2 Any liability of SWIFT is subject to the following limitations:
a) For any and all claims notified in one calendar year, SWIFT’s liability to any and all
customers will not exceed any of the following aggregate maximum amounts:
(i) 5 million Euro for claims relating to physical damage or loss of tangible property
(ii) 50 million Euro for claims relating to the provision or use of the SWIFT services and
products in a live environment and claims relating to clause 4.3.3 or 7
(iii) 1 million Euro for any other claims
b) SWIFT will not be obliged to make any payment until SWIFT’s liability in relation to any
claim notified in one calendar year has been finally accepted or established and, if such
liability exceeds any applicable maximum, proportionally reduced. SWIFT will then pay
within 90 days.
9.1.3 Any liability of SWIFT is subject to the following exclusions:
a) Even if SWIFT has been advised of their possibility, SWIFT excludes any liability for:
(i) any unforeseeable loss or damage (whether direct or indirect)
(ii) any loss of business or profit, revenue, anticipated savings, contracts, loss of or
corruption to data, loss of use, loss of goodwill, interruption of business, or other
similar pecuniary loss howsoever arising (whether direct or indirect)
(iii) any indirect, special, or consequential loss or damage of any kind
b) SWIFT is not obliged to perform or has no liability to the extent resulting from the provision
or use of services or products not supplied by SWIFT for use in connection with the SWIFT
services and products, or in the circumstances set out in clause 9.3.d or 9.4.General Terms and Conditions
1 January 2010 13
c) SWIFT’s liability for any one event or series of connected events is not cumulative, whether
arising under these General Terms and Conditions or otherwise.
9.1.4 The limitations and exclusions of SWIFT’s liability in clauses 9.1.2 and 9.1.3 do not apply:
a) to the extent expressly provided otherwise elsewhere in the SWIFT contractual
documentation (typically, in the relevant service description)
b) to any liability for death or personal injury
c) in case of fraud, wilful default or, more generally, to the extent not permitted under
applicable law
9.1.5 This clause 9.1 applies before as well as after any termination of the contractual arrangements
between SWIFT and the customer, and is also for the benefit of any other entities within the
SWIFT group.
9.2
The customer will indemnify and keep SWIFT indemnified against any and all actions, liabilities,
claims, demands, losses, damages, proceedings, costs, or expenses (including reasonable legal
fees, costs, and expenses) suffered or incurred by SWIFT in connection with any third-party
claim resulting from the customer’s possession or use of the SWIFT services and products.
Customer Liability
9.3
a) Each party will use all commercially reasonable efforts to limit any additional loss or
damage.
General Principles Governing the Liability of Each Party
b) Neither party may recover more than once for the same loss.
c) No undue enrichment will ever accrue to any party.
d) Neither party is obliged to perform or will have any liability to the extent resulting from any
act, fault or omission of the other party, or of a third party for which it is not responsible.
9.4
If any party is unable to perform its obligations due to causes beyond its reasonable control,
then that party will not be held responsible for any loss or damage which may be incurred by the
other party as a result of such inability. Such causes include acts of God, governmental acts,
acts of authorities, acts of telecommunications operators, facilities management contractors and
service providers, natural disasters, wars, fires, floods, strikes or industrial disputes, political
disturbances, explosions, bombs or civil disturbances, epidemics and all other circumstances
which, against its will, prevent or hinder any party from performing its obligations.
Force Majeure
Each party will give notice to the other one as soon as practicable upon becoming aware of such
event. If, due to such event, one of the parties remains unable to perform its obligations for more
than 60 days, then the other party may terminate the affected contractual arrangements
immediately. Neither party will have any liability to the other as a result of such termination, but
any such termination will be without prejudice to any rights which may have arisen prior to
termination.
9.5
Except as expressly provided in these General Terms and Conditions and to the extent
permitted by applicable laws, SWIFT does not give and specifically excludes and disclaims any
warranty of any kind, whether express or implied, statutory or otherwise, with respect to the
provision, possession, or use of its services and products, including (without limitation) any
warranty as to the condition, quality, performance, non-infringement, merchantability or fitness
for a particular purpose.
No WarrantiesSWIFT
14 General Terms and Conditions
9.6
Except to the extent they may otherwise agree with the customer directly, SWIFT’s licensors,
service providers, or vendors are not liable to the customer for any loss or damage of any kind in
connection with the provision or use of the SWIFT services and products, whether arising from
contract, tort or otherwise.
Liability of SWIFT Licensors, Service Providers, or Vendors
10 Duration and Termination
10.1
Unless expressly provided otherwise in the SWIFT contractual documentation, SWIFT provides
its services and products to the customer for an indefinite period.
Indefinite Term
10.2
Each party has the right to terminate its contractual arrangements for the provision of any or all
SWIFT services and products. To do so, the requesting party must inform the other party by
written notice 3 months in advance or, for the termination of a service administration agreement
governing a market infrastructure or a Member-Administered Closed User Group, 12 months in
advance.
Termination for Convenience
If the customer terminates its participation in a market infrastructure or a Member-Administered
Closed User Group, the customer must also notify the service administrator of the Closed User
Group of its intention to terminate.
10.3
Each party has the right to terminate its contractual arrangements for the provision of any or all
SWIFT services and products immediately upon written notice to the other party in the following
events:
Termination for Breach or Insolvency
a) The other party is in material breach of its obligations and such breach either (i) is
incapable of remedy or (ii) continues un-remedied for a period of 30 days after notice of the
breach has been given in writing to the other party.
b) The other party becomes insolvent or generally fails to pay, or admits its inability to pay, all
or a substantial part of its debts as they become due, or applies for or is granted a
moratorium.
c) A receiver, manager, administrator, liquidator, or other similar officer or practitioner is
appointed over the whole or any substantial part of the other party’s business or assets, or
any steps are undertaken to that effect (typically, it becomes the subject of a brankruptcy,
insolvency, or other similar proceeding).
SWIFT also has the right to terminate its contractual arrangements with the customer for the
provision of any or all SWIFT services and products immediately upon written notice to the
customer in the circumstances set out in clause 4.2.1.b.
10.4
The participation of the customer in a market infrastructure or Member-Administered Closed
User Group will automatically and immediately terminate if the service administrator requests
SWIFT:
Termination by the Service Administrator
a) to withdraw the customer from the market infrastructure or Member-Administered Closed
User Group
b) to terminate the market infrastructure or Member-Administered Closed User Group.General Terms and Conditions
1 January 2010 15
10.5
If the customer objects to a change to the SWIFT services and products, to the SWIFT
contractual documentation, or to new third-party licence terms governing the use of third-party
software embedded in SWIFT software, the customer may, as its sole and exclusive right and
remedy, terminate (without any liability or charge) its contractual arrangements with SWIFT for
the affected SWIFT services or products upon written notice to SWIFT. The customer must
serve such notice within 1 month of the date on which the customer becomes aware (or should
reasonably have become aware) of such change or new licence terms.
Termination for Change or New Third-Party Licence Terms
10.6
If the customer loses its status of SWIFT user, SWIFT partner, or service bureau (as the case
may be) for any reason, then its contractual arrangements with SWIFT for the provision of all
SWIFT services and products automatically and immediately terminate.
Termination for Loss of Customer Status
10.7
Termination of the contractual arrangements between SWIFT and the customer for any reason
will:
Consequences of Termination
a) not relieve any party from any obligations under the SWIFT contractual documentation
which may have arisen prior to termination or which expressly or by implication become
effective or continue to be effective on or after such termination
b) be without prejudice to any other rights or remedies any party may have in respect of the
termination.
Upon termination of the SWIFT services and products and without prejudice to any other right or
remedy of SWIFT, the customer must cease its use of the terminated service or product and, at
SWIFT’s direction, promptly return or destroy all related materials (including any software)
supplied by or for SWIFT in connection with the terminated service or product.
The foregoing does not apply to the extent that the customer (i) has the right to retain such
materials pursuant to its contractual arrangements with SWIFT or (ii) the customer is required by
law or regulation to retain such materials.
11 Personal Data Protection
SWIFT processes personal data collected:
a) by SWIFT for purposes relating to the provision of SWIFT services and products or relating
to SWIFT governance (for example, contact details of customer employees or security
officers)
b) by the customer and supplied to SWIFT as part of the customer’s use of SWIFT services
and products (for example, personal data contained in messages or files that the customer
sends, or in PKI certificates that the customer requests SWIFT to issue).
The rights and obligations of the Parties in each case are set out in the SWIFT Personal Data
Protection Policy
12 Confidentiality
12.1
The customer must keep in confidence all information, data or materials accessed or obtained in
connection with the provision of SWIFT services and products.
Customer Obligations of Confidentiality
The customer must only use such information, data or materials as reasonably necessary to use
SWIFT services and products in accordance with the SWIFT contractual documentation. SWIFT
16 General Terms and Conditions
The customer must only disclose such information, data or materials to its employees, agents,
subcontractors, or professional advisors (or those persons of its affiliated entities) on a “need-toknow” basis. Any other use or disclosure requires SWIFT’s prior written consent (which will not
be unreasonably withheld or delayed).
In each case, the customer must inform the recipient of the confidential nature of such
information, data or materials, and ensure that the recipient is bound by an obligation of
confidence no less restrictive than this clause 12.1. The customer remains responsible for the
use of information, data or materials by any such persons.
These confidentiality obligations will survive termination of the contractual arrangements of the
customer with SWIFT.
These confidentiality obligations do not apply to information, data or materials that the customer
can demonstrate:
a) were in the public domain (other than through a breach by the customer of its obligations)
b) were lawfully received free of any obligations of confidentiality from a third party who, in the
customer’s reasonable opinion, did not owe a duty of confidentiality in respect of such
information, data or materials
c) were developed independently by the customer without reference to such information, data
or materials
d) were required by law or regulation to be disclosed.
12.2
The obligations of confidentiality above apply mutatis mutandis to SWIFT in respect of all
information, data or materials accessed or obtained by SWIFT in connection with the provision
of SWIFT services and products, save to the extent varied by this clause 12.2 or other SWIFT
contractual documentation including the
SWIFT Obligations of Confidentiality
SWIFT Data Retrieval Policy.
In particular, SWIFT will only use such information, data or materials for purposes relating to the
provision of SWIFT services and products or SWIFT governance (typically, the promotion,
deployment, provision, and support of SWIFT services and products or of related services and
products of service bureaux or SWIFT partners; accounting and records keeping; or customer
management).
For these purposes, SWIFT may also share such information, data or materials within the
SWIFT group or with service bureaux and SWIFT partners (including their respective
employees, agents, subcontractors or professional advisors) provided that any such third party
complies with obligations of confidence no less restrictive than this clause 12.2.
Furthermore, the customer acknowledges and agrees that SWIFT may disclose the information,
data or materials of the customer to any other entities which are registered within the same
group of SWIFT users as the customer for the purposes of SWIFT traffic aggregation (for more
information about traffic aggregation, refer to Pricing and Invoicing – Price List).
13 Notices
13.1 Except when expressly provided otherwise in the SWIFT contractual documentation, all notices
from one party to the other, will be in writing (in paper or electronic form) and in English.
Such notices will be sent to the registered address and designated contact department or
person (if any) of the other party, or such other address as may be notified to the party serving
notice pursuant to the provisions of this clause 13.1. General Terms and Conditions
1 January 2010 17
13.2 As applicable, the customer must notify SWIFT of its intention to terminate its contractual
arrangements for the provision or use of the SWIFT services or products in electronic form,
through www.swift.com.
13.3 Notices relating to the termination of the SWIFT services or products which cannot be served
pursuant to clause 13.2 and notices which relate to any claims procedure must be served in any
of the following manners:
• by mail or courier, with acknowledgement of receipt
• by MT 999
The address for service of any such notices will be as follows:
• customer: its registered office, or any other address notified to SWIFT
• SWIFT: its registered office and marked for the attention of End-to-End Ordering or, in the
case of a claim made pursuant to clause 15, of the General Counsel.
13.4 All notices served in accordance with this clause 13 will be deemed effective upon their receipt
by the recipient.
14 Miscellaneous
14.1
14.1.1 The right for the customer to possess, access, or use SWIFT services and products is personal
(that is, it must support the customer own business operations). The customer must not transfer
or assign such right, or related obligations, to any third party without SWIFT’s prior written
consent.
Assignment and Sub-Contracting
The customer may delegate or sub-contract to a third party the exercise of its rights or the
performance of its obligations provided that SWIFT may refuse at its discretion any subcontracting or delegation of the financial obligations of the customer.
14.1.2 The customer acknowledges and agrees that SWIFT may assign or transfer any of its rights or
obligations to any other entity within the SWIFT group.
Subject to any restrictions set out in the SWIFT Personal Data Protection Policy, SWIFT may
delegate or sub-contract the exercise of its rights or the performance of its obligations.
14.1.3 If either party delegates or sub-contracts to a third party the exercise of its rights or the
performance of its obligations, it does so at its own risk and must ensure that the scope of rights
granted to any such third party does not exceed those contracted with the other party. That party
also remains fully responsible to the other party for the performance and observance by any
such third party of any obligations applicable to it.
14.2
14.2.1 Each party will give the other party such assistance as is reasonably required to ensure the
smooth performance of the SWIFT contractual documentation.
Assistance
14.2.2 In case of problems relating to SWIFT services and products (in particular, problems that can
affect the confidentiality, integrity, or availability of SWIFT services and products), the customer
must:
a) notify the SWIFT Customer Support Centre promptly of the problem
b) assist SWIFT in identifying, investigating, and resolving the problem
c) promptly correct the problem if it is the customer’s responsibility to do so, and notify SWIFT
when it has been resolvedSWIFT
18 General Terms and Conditions
d) respond correctly and promptly to any actions requested, recovery or fallback procedures
initiated, or directions given by SWIFT to mitigate or resolve the problem, and revert to
normal operation conditions when the problem is resolved.
14.2.3 Upon prior reasonable written request from SWIFT, the customer will provide any information,
data, facilities, and other assistance regarding the possession and use by the customer of
SWIFT services and products (such as the number of copies of SWIFT software in its
possession and their use, or compliance by the customer with security obligations).
The customer acknowledges and agrees that SWIFT may require that the internal auditors of
the customer confirm, in writing, the accuracy and completeness of any information or data
supplied by the customer pursuant to this clause 14.2.3.
14.3
If any part of the SWIFT contractual documentation is found to be invalid, unlawful, or
unenforceable, then such part will be severed from the remainder which will continue to be valid
and enforceable to the fullest extent permitted by law.
Severability
14.4
Subject to clause 15, no delay or failure by any party to exercise any of its rights or remedies
under the SWIFT contractual documentation will operate as a waiver of such term.
No Waiver
14.5
The relationship between SWIFT and the customer is not that of agent and principal, and neither
party has the authority to bind the other to any obligations.
No Agency
14.6
The SWIFT contractual documentation contains the entire agreement and understanding
between SWIFT and the customer relating to the provision and the use of the SWIFT services
and products. It supersedes and cancels all prior negotiations, representations, proposals,
statements, agreements and undertakings, written or oral, relating to the provision or the use of
SWIFT services and products.
Entire Agreement
14.7
Subject to clause 2.2, no amendment or modification to the SWIFT contractual documentation
will be effective unless it is in writing and signed by duly authorised representatives of the
relevant parties.
Amendments
15 Dispute Resolution
15.1
To make a valid claim, the customer must submit its claim to SWIFT within the following time
limits:
Time Limit
a) for claims relating to SWIFT invoices: within 30 days of the date of the invoice
b) for claims relating to messages or files sent or received in a live environment: within 3
months of the date the message or file was acknowledged (for FIN messages, and for
SWIFTNet messages and files flagged with non-repudiation) or emitted (for any other
SWIFTNet messages and files)
c) for any other claims: within 6 months of the date on which the claiming customer becomes
aware (or should reasonably have become aware) of the event giving rise to the claim.General Terms and Conditions
1 January 2010 19
15.2
The parties will use all commercially reasonable efforts to resolve at a business level any
disputes arising out of or in connection with the provision of the SWIFT services and products
within 1 month.
Conciliation
15.3
If the business representatives of the parties fail to reach agreement pursuant to clause 15.2,
then the customer agrees that any outstanding dispute will be finally settled according to the
following claims procedure:
Claims Procedure
a) If the matter relates to the provision or use of SWIFT messaging services, Solutions, or
applications in a live environment, the specific Claims Procedure for Problems in a Live
Environment applies.
b) For any other matter, the customer agrees to submit to the exclusive jurisdiction of the
competent court in Brussels (Belgium) or, if the claim exceeds 100,000 Euro, to arbitration.
In case of arbitration, the arbitral tribunal will be constituted under the Rules of Conciliation
and Arbitration of the International Chamber of Commerce (ICC) and, to the extent
permitted under said Rules, the provisions governing ICC arbitration in the Claims
Procedure for Problems in a Live Environment will apply.
16 Applicable Law
These General Terms and Conditions are governed by and construed in accordance with
Belgian law (without giving effect to any conflict of law provision that would cause the application
of other laws).SWIFT
20 General Terms and Conditions
Legal Notices
S.W.I.F.T. SCRL (“SWIFT”), Avenue Adèle 1, 1310 La Hulpe, Belgium.
RPM Nivelles – VAT BE 0413330856
Copyright
SWIFT © 2010. All rights reserved.
You may copy this publication within your organisation. Any such copy must include these legal notices.
Disclaimer
The information in this publication may change from time to time. You must always refer to the latest
available version on www.swift.com.
Translations
The English version of SWIFT documentation is the only official and binding version.
Trademarks
SWIFT is the trade name of S.W.I.F.T. SCRL. The following are registered trademarks of SWIFT:
SWIFT, the SWIFT logo, Sibos, SWIFTNet, SWIFTReady, and Accord. Other product, service, or
company names in this publication are trade names, trademarks, or registered trademarks of their
respective owners.

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